# Petition for Writ of Certiorari — School Board of Orange County v. Ellis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1801%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 410 U.S. 966 ## Text | _ INTHE | FS Supreme Court of the United OcToBER TERM, 1972 » THE ScHoot Boarp or Orance County, FLorDA, Petitioner, Vv. EvELYN R. ELLs, Ev AL., Respondents. —_ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT JAMES W. MARKEL 221 South Knowles Avenue Post Office Drawer 1690 Winter Park, Florida 32789 Attorney for Petitioner * Purss or Brnon S. Avams Pumrrmve, Inc., Wasmmrorom, D. C. =, COPY B OUND CLOSE IN CENTE? a, dnd Page EE EE bencthatsabebnidevenuasaviaccecaes 1 Se eihnaidiin Wininhekngaubebide sikawatwewinnnéees 2 PUNE naan inccnecccnscecccceccccecs 2 Constitutional Provisions Involved ................. 2 iin WE wn cennccedseeene 3 1, Proceedings in the District Court ............ 3 2. The Decision of the Court of Appeals ........ 4 Reasons for Granting the Writ ..................... 4 EE EE RETR TS het a TO 10 EE eat Naud bbe bslth oe busiwmwarevecocces la Opinion of the United States Court of Appeals for the Fifth Circuit, entered August 17, 1972 ...... la Orders of the United States District Court for the Middle District of Florida, Orlando Division: Entered July 22, 1971 .............ccccccuce 4a Entered August 16, 1971 ................0005. lla Entered September 17, 1971 ................. 25a CITATIONS Brown v. Board of Education (Brown II), 1955, 349 | __ RAER R NS PeRSeT 6 Ellis v. Board of Public Instruction of Orange County, Florida, 5 Cir. 1970, 423 F.2d 203 .............. 3 Swann v. Charlotte-Mecklenburg Board of Education, Wy © OD ii vii dic hodvandawcdvs 3, 4, 5, 6, 7,8 Fourteenth Amendment, Constitution of the United ER ELAR LITA RT am ERS 2 BLE PMS GEILE IS ER A I LIEB LLG LIE DR EE AIL, BEEF ‘ Z 4 « a COPY BOUND CLOSE IN CENTE}F. Dieta St SE Ab 7 aah ER BPA RO IN THE Supreme Court of the United States OcToBER TERM, 1972 No. THE ScHooL Board oF ORANGE County, FLoripA, Petitioner, v. EvELYN R. ELLIs, ET AL., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Petitioner prays that a writ of certiorari issue to review the order and judgment entered on August 17, 1972, by the United States Court of Appeals for the Fifth Cireuit. OPINIONS BELOW The order, judgment and opinion of the United States Court of Appeals for the Fifth Circuit entered August 17, 1972, is set forth in the Appendix, p. 1a. The opinion of that Court is not yet reported. The wh eae steht adsl Pers eee en Mae Mate EL Hr peda 3 3 i # i ; ; 4 E | j : ; % P| é a 9 om decisions of the United States District Court for the Middle District of Florida entered on July 22, 1971, on August 16, 1971, and on September 17, 1971, are set forth in the Appendix, pp. 4a, lla, 25a. These decisions are not reported. JURISDICTION The judgment of the United States Court of Appeals for the Fifth Circuit was made and entered on August 17, 1972. The jurisdiction of this Court is invoked under and pursuant to 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether schools constructed in 1964 and 1966 as a result of a legal stipulation entered into by the parties in a school desegregation action constitutes dis- eriminatory action by school authorities. 2. Whether in a school desegregation action a school board has an obligation under traditional concepts of equity jurisprudence to correct in 1972 the effects of a legal stipulation filed in 1964. 3. Whether a finding of the District Court that fvr- ther desegregation of one school is not feasible under the circumstances then existing can be reversed by the Court of Appeals in the absence of any stated reasons for reversal. CONSTITUTIONAL PROVISIONS INVOLVED This petition involves the Equal Protection clause of the Fourteenth Amendment to the Constitution of the United States. ASE OPERA TT ED STEER ON Se NE PIES BIS PANE RM ng . « ie, COPY BOUND CLOSE IN CENTE}F. STATEMENT OF THE CASE 1. Proceedings in the District Court In May of 1971, the respondents, following this Court’s decision of Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971), filed a motion for fur- ther relief before the District Court. (The Orange County school system previously had been adjudged unitary and fully desegregated in February of 1970. Ellis v. Board of Public Instruction of Orange County, Florida, 5 Cir. 1970, 423 F. 2d 203.) The respondents’ motion prayed that the District Court restructure the student body compositions of eleven schools attended predominantly or solely by black students, alleging that the racial composition of the schools was a “continuing effect of past and present discriminatory action” by petitioner. (emphasis supplied) | The District Court conducted hearings to determine if the racial composition of the eleven schools con- stituted a ‘‘vestige”’ of a state-imposed dual school sys- tem. The District Court ruled that four of the schools (Hungerford, Maxey, Orange Center, and Richmond Heights) were not vestiges of past discriminatory action since these schools were constructed after re- spondents in 1964 entered into a joint stipulation re- ceding with prejudice from any objections to the con- struction of these schools. (This litigation was begun in 1962.) The District Court further found that de- segregation of one school (Eccleston) was not ‘fea- sible” in that a wide band of schools surrounding this school had mixed student bodies making it imprac- ticable to achieve further mixing. The District Court ordered petitioner to prepare and implement a de- segregation plan for the remaining six schools. Peti- eed cian | Sate SFIS —— “ oo, o> i — eat Waassrecciin Oiey dasa nceess : 2 e schools but there would still be 24 all-white or nearly all- white schools. In Charlotte-Mecklenburg the Court said in reference to schools all or largely of the minority race: ** _. . In some circumstances certain schools may re- main all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominately of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation. In light of the above, it should be clear that the ex- istence of some small number of one-race, or virtually one-race schools within a district is not in and of itself the mark of a system which still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible de- gree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools. No per se can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for re- medial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composi- tion. Where the school authority’s proposed plan for conversion from a dual to a unitary system contem- plates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The Court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the Court that their racial composi- ——— niet petted PR PAM OI, le PEEL ET NTR > . COPY BOUND CLOSE IN CENTE}. arr tion is not the result of present or past discriminatory action on their part.’’ The foregoing Supreme Court opinion in effect, requires two results in desegregation efforts—first, the abolition of any state-imposed segregation in the school system—stu- dents, staff, facilities, transportation, faculties and extra- curricular activities; and second, the elimination of all the vestiges of past segregation. In the Orange County school system segregation is dead and its corpse long-since buried; however, the question re- mains Whether certain schools have all-black or nearly all- black student bodies because of past state-imposed school segregation. If so, then the school board must present a plan to change the racial composition of such schools. Swann v. Charlotte-Mecklenburg, supra. On the other hand, if the racial composition of such schools is not the result of present or past discriminatory action on the part of the school authorities, then Swann v. Charlotte-Mecklen- burg does not compel racial redistribution. The school board has taken the position that its school system is a unitary one and that the motion for further relief should be denied. However, Swann v. Charlotte- Mecklenburg requires the further findings by this Court as above noted. Therefore this case is set for further hearing at 10:00 o'clock A.M., August 3, 1971, before this Court for the school authorities to present either evidence sufficient to carry their burden that the racial composition of the fol- lowing listed schools (which in May 1971 had student bodies which were 90% or more black) is not the result of past discriminatory action on their part or a plan for changing the racial composition of such schools as to which they cannot carry such burden. As already indicated, the composition is not the result of any present discrimination re 10a so the issue involved relates solely to whether the racial composition is the result of past school discrimination. The schools involved are: Carver Junior High School Eccleston Elementary Holden Street Elementary Orange Center Elementary Richmond Heights Elementary Washington Shores Elementary Webster Elemeatary The defendants and their counsel have access to the facts from which they should be able to decide if they are re- quired to present a plan under the existing law without the necessity of court order. If a plan is required it should be presented on August 3rd and be sufficient to accomplish full compliance with Brown I? as amplified by Swann v. Charlotte-Mecklenburg and related cases. Hopefully this litigation might then terminate. Chief Justice Burger ree- ognized such a possibility in these school cases when in Swann he stated: ‘*At some point, these school authorities and others like them should have achieved full compliance with this Court's decision in Brown I. The systems will then be ‘unitary’ in the sense required by our decisions in Green and Alereuder. It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitution ally required to make year-by-year adjustments of the racial composition of student bodies once the affirma- tive duty to desegregate has been accomplished and racial discrimination through official action is el:mi- ? Brown v. Board of Education, 347 U.S. 483 (1954). SRR Ea eT Se => * = ‘ COPY BOUND CLOSE IN CENTE}. lla nated from the system. This does not mean that fed- eral courts are without power to deal with future prob- lems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affeet the racial composition of the schools, further intervention by a district court should not be necessary. ...”’ Ir Is So Onvenen this 22nd day of July, 1971. /3/ Grorce C. Youre United States District Judge UNITED STATES DISTRICT COURT ¢ MIDDLE DISTRICT OF FLORIDA . ORLANDO DIVISION No. 1215-Ort-Crv. Every R. Ex.is, et at, Plaintiffs, Vv. Tre Boarp or Pustic Ixstrectiox or ORANGE County, Fiorina, Defendant. Order This suit was initiated on April 6, 1962—almost nine and a half years ago—but still is before this Court. Its lengthy life is not due to prolonged active litigation or to inatten- tion by this Court. The reason it still lingers on is because it has been revived from time to time by plaintiffs’ counsel because of new developments in the law as determined by judicial decisions. Om May 28, 1964 a “‘Plan of Desegregation’’ was filed by defendant school board; on June 9, 1964 counsel for plain- tiffs and counsel for defendant filed a joint stipulation ~ agreeing that the plan filed May 28, 1964 complied with the prayers of the amended complaint and on June 9, 1964 a ‘‘Final Decree’’ was entered directing compliance with the May 28th plan. The record does not reflect any non- ; compliance with that plan. The next development in the case—as reflected by the file—with the filing of a joint motion by counsel for both sides seeking an order of this Court requiring compliance with an Amended Plan of Desegregation as attached to the motion and which amended plan counsel agreed would com- ply with the requirements of United States v. Jefferson County Board of Education, et al, 380 F.2d 385 (5th Cir. 1967). On April 25, 1967 another ‘‘Final Decree’’ was entered by this Court directing implementation of the amended plan. Then on December 2, 1968 a ‘‘Motion for Further Re- lief’’ was filed alleging the plan in effect had not succeeded in dismantling the dual school system. No charge was made that defendant had not complied with the plan in effect; rather, the charge was against the: plan itself. On February 18, 1969, after a prior hearing, this Court di- rected the defendant to present a further plan of desegre- gation in compliance with the then applicable decisions of the United States Supreme Court and the Fifth Cireuit Court of Appeals. On February 26, 1969 counsel for both sides filed a ‘Joint Motion’’ secking another order of this Court re quiring board compliance with the then existing plan as amended by the amendments attached to the said ‘‘ Joint Motion’’. The proposed amendments—known as Plan “a COPY BOUND CLOSE IN CENTE}.